Capability Procedure (Performance) (Ordinance 29)

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This ordinance must be read in conjunction with the General Principles and Definitions Ordinances 26-31 (Ordinance 25)

1.        Application and Scope

1.1       The purpose of this procedure is to provide a constructive framework to address, identify and resolve any areas of concern relating to an individuals’ performance and to ensure that any action taken is fair and consistent.

1.2       This procedure applies to all employees (except those who are in their initial service review period).

2.         Early Action

2.1      It is part of the supervisory process that managers bring to the attention of employees the standards of performance required and any failure to meet those standards. Any minor lapses in performance should be dealt with by the employee’s line manager (the “Manager”) informally and without delay. The Manager should speak to the employee to ensure that they understand the nature of any concerns, expectations of improvements in performance (for example in levels of skill, knowledge, responsibility, autonomy and behaviours) and where appropriate timescales and the nature of any support or training available. Where an employee has identified that their performance may have been affected by ill health or a disability, additional support may be available (see Ill Health Policy, Appendix 1 to Ordinance 31).

2.2     It is expected that minor cases of underperformance will be dealt with informally between the employee and their Manager. However if that informal discussion does not bring about an improvement or where there are more serious concerns about an employee’s performance, formal action under this procedure may be taken.

3.         Considering Taking Formal Action

3.1  Before any formal action is taken the Appropriate Manager will review the circumstances and the detail of the performance concerns. In particular the Appropriate Manager will consider

(i)    the nature of the concerns;

(ii)  whether the employee has been informed of what is expected of them and where the performance shortfalls lie;

(iii) whether the employee has identified that their performance may have been affected by ill health or a disability and what steps have been taken under the Ill Health Policy;

(iv) the support or training that may have already been provided to the employee.

4.          Taking Formal Action

4.1       Where it is decided that formal action is to be taken the employee will normally be given ten days’ notice and invited to attend a capability hearing.

           Prior to the Capability Hearing

4.2       The employee will be provided with details of the performance concerns and an indication as to their seriousness and whether dismissal may be considered.

4.3       Prior to the hearing the employee will be invited to provide:

(i)   their response to the performance concerns including bringing forward any relevant witnesses;

(ii)  any documentation that they will refer to in the hearing.

4.4       Prior to the hearing any documentation that is to be relied upon by either the employee or the University will be made available to each other and to the Appropriate Manager at least seven days before the hearing.

          The Capability Hearing

4.5       An Appropriate Person (supported by Human Resources) may explain the performance concerns about the employee at the hearing.

4.6       The hearing will be conducted by the Appropriate Manager supported by Human Resources (HR).

4.7       The Appropriate Manager will arrange for notes of the meeting to be taken.

4.8       At the hearing the employee will be given an opportunity to present their case, question witnesses and raise any issue that they wish to have considered.  The Appropriate Manager will be able to question those involved in the case.

            The Outcome of the Hearing

4.9       At the end of the hearing the Appropriate Manager will consider all representations then decide if on the balance of probabilities whether the performance concerns are justified and if justified what level of capability sanction, up to and including dismissal is appropriate.  On the basis of the information presented the Appropriate Manager may decide to impose any of the capability sanctions set out in paragraph 4.11. In all cases the Appropriate Manager will consider whether it is appropriate to withhold any salary increment from the employee.

4.10    The decision may be given on the day of the hearing and will in any event be confirmed in writing within fourteen days of the hearing.  The employee has a right of appeal against any decision.

            Capability Sanctions

4.11    There are three levels of sanction that may be given: first written warning, final written warning and dismissal.


4.12    The warnings given under this procedure will normally be “live” for a period of 12 months.  At the end of that period, subject to the employee’s’ satisfactory performance, the warning will normally be disregarded for disciplinary purposes.  However, the University reserves the right to issue warnings for a longer period depending on the nature or seriousness of the poor performance and to take previous action taken under this procedure into account when issuing a sanction or other measure in respect of subsequent poor performance even when the stated duration of any previous warning(s) or other action taken has expired.  The University reserves the right to extend the period of time in which a warning is live to reflect any period of time for which the employee is absent from work (not including, for example, annual leave) whilst the warning is live.

4.13   A written warning will be placed on the employee's HR file and will set out:

(i)         the areas where the required standards of performance have not been met;

(ii)       any specific action(s) that the employee is required to take and outcomes that they are expected to achieve to improve their performance including any time period for completion;

(iii)       any measures such as additional training or support which will be taken with a view to improving performance;

(iv)       the date(s) of any interim review meeting(s) to review progress;

(v)         the Review Period i.e. the period of time over which the employee will need to demonstrate that they can sustain the required improvement in performance; and

(vi)       the consequences of failing to improve performance within the Review Period or of further unsatisfactory performance (whether similar or not) within the Review Period including, if appropriate, termination of employment.

           First Written Warning

4.14   Where the poor performance is of a minor nature or, after early action has been taken but there has been no improvement in performance, a first written warning may be issued. 

            Final Written Warning

4.15    If after a first written warning has been given the employee’s performance has not improved, or where the performance concerns are considered sufficiently serious to warrant a final written warning but not sufficiently serious to justify dismissal,  a final written warning may be issued. 


4.16    Dismissal of an employee may be considered where performance:

(i)            has not improved sufficiently within the review period set out in a final written warning;

(ii)          is unsatisfactory while a final written warning is still active; or

(iii)         has been grossly negligent such as to warrant dismissal without the need for a final written warning.

4.17    When considering dismissal the Appropriate Manager may decide with support from HR:

(i)         to dismiss the employee;

(ii)        that there are insufficient grounds to dismiss the employee;

(iii)       on the imposition, or extension of a warning already issued under this procedure; or

(iv)       to explore options other than dismissal with the employee.

5.         Appeals

            Appeals against warnings

5.1       If an employee wishes to appeal, they should write to the Human Resources Director within 14 days of receiving the written notification of the warning. The appeal letter must set out the reasons for the appeal.

5.2       The Human Resources Director will then arrange for the appeal to be heard by an Appropriate Manager who has had no prior involvement in the case.  The appeal hearing will be a review of the decision to issue a warning and will be supported by Human Resources.

5.3       The Appropriate Manager conducting the appeal may substitute a different sanction from that appealed against; it is not intended that a substituted sanction would be more severe.

5.4       The decision may be given at the appeal hearing and will in any event be confirmed in writing within 14 days of the hearing.

5.5       The decision following the appeal shall be final and there will be no further internal right of appeal.

            Appeals against dismissal

5.6       The employee has the right of appeal against a decision to terminate their employment under this procedure.  Any appeal should be made in writing to the University Secretary within 14 days of the date of the letter confirming the decision appealed against.  The appeal must state the grounds for appeal.

5.7       The appeal will be heard by a panel of at least three, none of whom should have had any prior involvement in the case. The appeal panel shall include one member who is independent of the area (for example the Faculty or Division) in which the employee is employed and in the case of academic staff the appeal panel shall include a member of the academic staff from Senate.

5.8       University Secretary or nominee from Human Resources shall act as clerk to the appeal panel.  The procedure shall be determined by the panel.  The employee may present the appeal in person, attend hearings and be accompanied by a representative.  The University may be represented by a member of staff or other representative.

5.9       The panel’s decision is final.  The panel shall give a reasoned decision in writing which shall be sent to the employee and the Appropriate Manager.